The Limits Of Amending Romania's Constitution In Relation To The EU Legal Order

The Limits Of Amending Romania's Constitution In Relation To The EU Legal Order Presented by: Prof. Dr. Safta Date: 22 March 2024 Introduction - In the Project research entitled The amendment of Member States' Constitutions in relation to the EU legal order and constitutional identity, I examined the issue of the limits of the revision of the constitutions and the dynamics of the intangible values (core of values that reflect the original constituent power to protect the established constitutional order) in the context of EU developments. - These values are explicitly mentioned in some constitutions as "revision limits", or their implicit existence is establish through interpretation in the case law of the constitutional courts. - I started from the idea that, in itself, the accession of the MS to the EU is based on the presumption of the coherence of the system of fundamental values, namely on the idea that the acts of accession to the EU and then the amendment of the founding treaties are in accordance with the explicit or implicit limits laid down in the MS constitutions. - In the same time, after joining the EU, MS agreed that, based on the principle of loyal cooperation, they shall take "any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the treaties or resulting from the acts of the institutions of the Union", facilitate "the achievement of the Union's tasks" and refrain "from any measure which could jeopardize the attainment of the Union's objectives." (Article 4 (3) of the TEU). - As a consequence, once passed through the constitutional filter (explicit or implicit) of the 27 MS, the legal order established by the EU Treaties itself became a "filter" for them. - Questions: • The obligations assumed by the MS establish a new limit to the revision of the MS constitutions? • What would this limit consist of and how does it interfere/integrate into the national constitutionalism? • Are we still talking about a rigid "cornerstone" of the MS constitutions or a flexible one, influenced by the definition that the "common values" of the EU acquire at various times? • Does the ECJ have exclusive rights to define the common values? Where is this evolution leading us, and what does "constitutional identity" (usually attached/explained in relation to the "nucleus" of the constitution) mean in this context? - Objective • During today's conference, I will develop a section of the article mentioned above that discusses Romania's experience, in order to open debates related to similar experiences of other Member States. • In Romania, the boundaries of the Constitution's revision have undergone an interesting transformation in terms of the overall theme of coexistence and the future of the European Union, that could demonstrate that the "cornerstone" of the Romanian Constitution is adaptable and influenced by European law in a broader sense. The Limits Of The Revision Of The Romanian Constitution And The Competence Of The Constitutional Court To Control Compliance With These Limits - Procedure for the revision of the Constitution • According to Article 150, the initiative for revision belongs to: the President of Romania, on the proposal of the Government; at least one quarter of the number of Deputies or Senators; at least 500,000 citizens with the right to vote, who must belong to at least half the number of the counties in the country, and in each of these counties/Municipality of Bucharest, at least 20,000 signatures must be recorded in support of this initiative. • According to Article 151, the draft or proposal of revision must be adopted by the Chamber of Deputies and the Senate, in separate sittings, by a majority of at least two thirds of the members of each Chamber of Parliament. If the two Chambers adopt different texts, the mediation procedure shall be used. If no agreement can be reached by a mediation procedure, the Chamber of Deputies and the Senate shall decide thereupon, in joint sitting, by the vote of at least three quarters of the number of MPs. • The revision shall be final after the approval by a referendum held within 30 days of the date of passing in Parliament the revision law. • The revision law of the Constitution enters into force on the date of publication of CCR's decision confirming the returns of the referendum. • Within the revision procedure, CCR plays a key role exercising the constitutional review on the initiatives to revise the Constitution and on the laws for the revision of the Constitution passed by Parliament. The purpose of the control is to comply with the revision procedure and its limits. Likewise, CCR guards the observance of the procedure for the organization and holding of a referendum and confirms its returns. • - Article 146 a) second thesis of the Constitution These limits are enshrined in Article 152 in three paragraphs, classified in the legal literature into: • Material limits [(1)], meaning those values considered intangible by the constituent power ("the national, independent, unitary and indivisible character of the State, the republican form of government, territorial integrity, independence of justice, political pluralism and official language shall not be subject to revision), • Teleological limits [(2)], meaning meaning "the result of the procedure that is not desirable" (no revision shall be made if it results fit results in the "suppression of the citizens' fundamental rights and freedoms or of the be made if it safeguards thereof") and • Limits concerning exceptional situations [(3)] ("The Constitution shall not be revised during a state of siege or emergency, or in wartime"). These limits are subsumed under the requirements of extrinsic constitutionality [Article 152 (3)], and of intrinsic constitutionality of the revision [Article 152 (1) and (2)] analyzed by CCR in carrying out the control of initiatives/laws to revise the Constitution. - The CCR qualified the limits of the review written in art.152 as belonging to the national constitutional identity, a guarantee of a "fundamental identity core of the Romanian Constitution", which "should not be relativized in the process of European integration". - By virtue of this constitutional identity, "the Constitutional Court is empowered to ensure the supremacy of the Fundamental Law on the territory of Romania". (Decision 390/2021) - As a result, the ruling on the respect of the limits of the revision by the Constitution revision law means, implicitly, the ruling on the respect of the identity core of the Romanian Constitution. The Evolution Of The Case Law Of The CCR. A hybrid "Cornerstone" Of The Constitution - Thus, in Romania, in the 30 years since the adoption of the Constitution, 10 initiatives to revise the Constitution have been promoted, as follows: 5 by MPs [1996, 2003, 2014, 2019 (2 initiatives)], 4 by the citizens (2000, 2007, 2016, 2019) and one by the President of Romania on the proposal of the Government (2011). - The decisions of the CCR on these initiatives illustrate an evolution towards a broader interpretation of the express limits established in article 152. - First stage • Incorporating the general principles outlined in article 1 of the Constitution, which explicitly refers to the rule of law, and also incorporating the international treaties on human rights that Romania is a party to (referred to as the "constitutionality block", as provided by article 20 of the Constitution). • In 2011, CCR established in this regard that  "In carrying out this power, the Constitutional Court is to rule upon the fulfilment of the constitutional requirements of form and substance regarding the revision of the Constitution, laid down in title VII Articles 150- 152 of the Fundamental Law - "Revision of the Constitution", requirements that refer to the initiative of revision and limits of revision. At the same time, the Court is to rule upon the observance of the provisions of international treaties in the field of human rights Romania is a party to, and, in carrying out its role as guarantor of the supremacy of the Constitution, to analyse the proposed amendments in terms of the principles that ground and define the Romanian State, set forth in Article 1 of the Constitution." • It seems that the identity core itself became a "block of constitutionality", incorporating, in a first stage, the general principles that underpin the organization of the Romanian state and the international treaties on human rights to which Romania is a party. • - Decision No 799 of 17 June 2011, Official Gazette no.440 of 23 June 2011 Consequences • The effectiveness of this hybrid/composite core can be noticed in terms of the protection of fundamental rights. • Thus, for example, through the decision issued in 2014 on the initiative for the revision of the Constitution, the CCR recommends that the Romanian fundamental law to use a legal language identical to that of the European Convention of Human Rights. Therefore, noting that the sole article point 14 of the proposal on the revision of the Constitution contained the amendment of Article 21 (3) of the Constitution in the sense of replacing the notion of "reasonable term" with that of "optimal and predictable term" and that the text of Article 6 (1) of the Convention uses the name "reasonable term", "by unanimity, the Court recommended the removal of the proposed amendment to Article 21 (3) of the Constitution". (para 62) Similarly, the CCR recommended the removal of the proposed amendment to Article 49 of the Constitution Protection of children and young people, with reference to the concepts and definitions contained in the Declaration of the Rights of the Child, adopted by the General Assembly of the United Nations Organization on 20 November 1959, and in The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations Organization on 20 November 1989, ratified by Law No 18/1990, republished in the Official Gazette of Romania, Part I, no. 314 of 13 June 2001. - Second stage • The most recent decisions of the Courts pronounced in 2019 provide an interesting nuance towards the application of EU law in controlling initiatives to revise the Constitution. • It's important to note that the Romanian Constitution capitalizes EU law based on a specific text - Article 148 of the Constitution. The inclusion of the EU Charter of Fundamental Rights is subject to these special rules, which prioritize the application of EU law in case of conflict with internal laws. • This differs from the general framework of international human rights treaties to which Romania is a party, established by Article 20 of the Constitution and already implemented by the CCR in the previous jurisprudence regarding the review of the constitutional amendments. - Thus, in the Decisions 464 and 465/2019 CCR examined the initiative to amend the Constitution intended to forbid the President of Romania to grant pardons for corruption crimes. • On this occasion, CCR specified more clearly the way in which it proceeds to analyze the limits of the review of the constitutional amendments, showing that • the Court's analysis must be carried out in two steps when evaluating the suppression of fundamental rights and freedoms or their guarantees in the sense of art. 152 paragraph (2) of the Constitution, namely • (1) the analysis of the revision initiative in relation to the general principles which guides the entire catalogue of fundamental rights and freedoms, principles that constitute their guiding guarantees, respectively • (2) the analysis of the review initiative in relation to an applicable fundamental right or freedom. The violation of the aforementioned general principles has a decisive character and can no longer make the transition to the second stage of analysis, it is not necessary to identify the suppressed fundamental right or freedom because the violation of the principle of equality affects the individual himself, who is evaluated and placed, based on arbitrary criteria, in a position of inferiority." - Based on this approach, the CCR found that • "The general ban on granting individual pardons regarding corruption crimes has the effect of denying the vocation of persons who have committed such crimes to benefit from individual pardons. Such a legal treatment, regardless of its normative level, disregards the human existence of the individual, placing, from a human point of view, the persons who have committed corruption offenses in a situation of inferiority, which constitutes a limitation of their dignity human." - The Court finds, thus, that the expected measure represents a disregard of the subjective principles that characterize the human being, which constitutes, through the prism of Article 152 paragraph (2) of the Constitution, an infringement of human dignity. Conclusions - The interpretation made by the Romanian Constitutional Court (CCR) is continuously shaping the limits of the Constitution's revision. - In the same way as referring to human dignity, which is a general principle enshrined in Art. 1 of the Romanian Constitution, the gate is opened to the valorization of other principles, such as the rule of law (also enshrined in Article 1), which has a unique status between the identity values of the EU and its own imposition Mechanism. This practically makes its definition difficult to comprehend in a way other than in EU terms. - The overlap of the values qualified as "cornerstone" or "identity", creates a continuous plasticity of identities that are constantly reconfigured, developing together. The "key" to this development seems to be related to the interpretation of those values, as well as the delimitation of those that remain (if they remain) exclusively national.